The purpose of the ‘disclosure and inspection’ process in civil litigation is to ensure the proceedings are fair. While the principles which underpin the process are straightforward, disclosure and inspection is a major undertaking if there are lots of records relevant to the litigation. Or, as with my personal injury claim, there is no common ground about what has to be done.
In June 2015, I got knocked off my bicycle by a car as I was riding round a roundabout. The car came down a slip road off a motorway, the driver did not see me, failed to give way on joining the roundabout and hit me from behind at speed. The photo above is of my rear wheel. I was launched into the air and came down with a bump. It could have been much worse. I had whiplash injuries to my back and neck plus some grazes and bruises. But if he’d hit me a second earlier, it would have been side-on and I’d have gone up’n’over the car, which does not bear thinking about. The police came and the driver admitted liability.
Settlement negotiations with the driver’s insurance company, Aviva Insurance Limited, did not get anywhere. In October 2016 I issued a court claim against Aviva and the driver. The claim is probably worth £10,000, though there is still some medical evidence to come. Aviva and the driver are represented by the large law firm Clyde & Co and the person with day-to-day conduct is a paralegal. All things being equal, I expected Clyde & Co to know how disclosure and inspection work and to do it properly.
But Clyde & Co do not always get things right. In April 2017 Clyde & Co and three partners were fined £80,000 for breaching money laundering and accounting rules. The eye-catching events were that Clyde & Co allowed a company to use it as a bank. €765,000 was paid in and out of Clyde & Co’s client account for a fee of €35,000. There was no legal work connected to the transactions. One of the partners recognised the risk that money was being laundered or washed through the client account but Clyde & Co went ahead anyway. If you can get the big stuff wrong, it’s more than possible you can get the small stuff wrong?
Back to my claim: there was a court hearing about it in August 2017. Aviva accepted liability, conceding the accident was the driver’s fault. The Defendants were ordered to pay me damages and costs to be assessed by the Court. The judge gave directions about how the assessment process was going to work. The directions included:
Disclosure of documents will be dealt with as follows:
a) By 4pm on 14th September 2017 all parties must give to the other parties standard disclosure of documents by list; to include in the case of the Claimant his redacted medical records with liberty to the Defendant to apply
b) By 4pm on 21st September 2017 any request must be made to inspect the original of, or to provide a copy of, a disclosable document.
What is disclosure and inspection?
It’s Part 31 of the Civil Procedure Rules (CPR) which deals with disclosure. The key principles are:
- ‘document’ means anything in which information of any description is recorded (CPR 31.4)
- standard disclosure requires a party to disclose documents which: (a) he relies on; and (b) adversely affect his own case; adversely affect another party’s case; or support another party’s case (CPR 31.6)
- there’s a duty to make a reasonable search for documents which fall in those categories (CPR 31.7)
- a party makes standard disclosure by listing the documents on the relevant form (CPR 31.8)
- there’s a right to inspect and copy disclosed documents (CPR 31.3 and 31.15)
Reduced to fundamental principles, disclosure and inspection is about ensuring civil litigation is fair. Requiring a party to disclose documents on which they rely prevents trial by ambush – producing evidence at the last minute so the other side is unable to properly challenge it. And it also obliges a party to check if it has – and then disclose – material which undermines its own case or supports another party’s case. Tom Bingham, former President of the Supreme Court, gets to the nub of the issue in his book The Rule of Law at page 101:
The policy of the law is that litigation should be conducted with the ‘cards face up on the table’.
The parties are … required to disclose to each other any documents on which they rely in the action and any documents which adversely affect their own cases, any documents which adversely affect any other party’s case or any documents which support any other party’s case. This is a very important procedure, since it means that a party may not produce the documents which strengthen his case while withholding the documents which weaken it, and not infrequently letters, diary entries, memos and minutes made or written at the time provide a surer guide to the truth than what the litigants say years later when differences have arisen. Lawyers hope, usually vainly, that among the other side’s documents there will be one or two documents which demolish that party’s case …
Disclosure and inspection in my claim
Having being ordered to give standard disclosure, I looked at CPR Part 31 to find out what I had to do. I went through my computer looking at documents (emails, photos, scans of document etc) relating to the accident and litigation. I asked myself the questions: am I relying on this? Does it undermine my case? Does it help the other parties’ cases? I filled in the form with the list of documents, erring on the side of caution – if I thought it might help the other parties, it went on the list. I signed the declaration on the form and sent it off to Clyde & Co.
I waited for the Defendants to give standard disclosure, but received nothing: no forms, no explanation. I queried why the Defendants had not given standard disclosure. The response was:
As liability is admitted, there are no documents to disclose by the Defendants as the relevant evidence now relates only to your claim for damages.
It is true that liability is admitted and evidence is only relevant in so far as it relates to the assessment of damages. But: it does not follow from these propositions that there are no documents to disclose. The Defendants may have documents which are relevant to the assessment of damages. One of the Defendants is the driver of the car which hit me and he assisted in providing first aid and saw the aftermath of the accident. The other Defendant is his insurer. Plainly, either Defendant may have documents which support my claim in terms of injuries to me and damage to my bike, most obviously the report from the driver to his insurance company.
Further, the judge knew that liability was admitted (that’s why he said ‘the following directions shall apply to the assessment of the damages to be paid’) and still went on to order disclosure. The judge recognised that the Defendants may have documents which should be disclosed. And neither the barrister for the Defendants (Mussadak Mirza who has over 10 years experience) at the hearing, or Clyde & Co after the hearing, objected to the disclosure direction.
I explained these points to Clyde & Co and that I was going to make an application to the court for the Defendants to give standard disclosure. Clyde & Co had another go at justifying not giving standard disclosure:
The parties have an ongoing duty of disclosure. Currently, there is nothing for the Defendants to disclose as to the only live issue, i.e. the quantum of your claim (because it is your claim to prove) and therefore there is nothing to list beyond those documents already common to the parties (our correspondence and pleadings). Any application made will be opposed on the basis that it is entirely baseless in circumstances as the Defendants have confirmed they have no documentation upon which they intend to rely at such time. For the avoidance of any doubt, all and any costs incidental to the application will sought from you.
It is true that there is an ongoing duty of disclosure. CPR 31.11 is ‘(1) Any duty of disclosure continues until the proceedings are concluded and (2) If documents to which that duty extends come to a party’s notice at any time during the proceedings, he must immediately notify every other party.’ But the judge did not direct the Defendants to comply with their ongoing duty of disclosure, he directed: ‘By 4pm on 14th September 2017 all parties must give to the other parties standard disclosure of documents by list.’ And the Defendants should have complied with this or asked the Court to vary the direction.
The second part of Clyde & Co’s justification (damages is the only live issue) repeats the flawed conclusion identified above. And the final part ‘the Defendant have confirmed that they have no documentation upon which they intend to rely’ conspicuously fails to recognise that standard disclosure requires a party to disclose not only documents which he relies on; but also documents which adversely affect his own case or support another party’s case.
And, finally, while there may be no documents to disclose, I am entitled to know the Defendants have done that which the CPR and direction requires them to do: search for disclosable documents, list them on the form and sign the declaration to say the Defendants have complied with their legal obligations.
Hearing of my application for disclosure
I issued the application for an order that the Defendants comply with the direction for disclosure. The application was heard on 13 November 2017. The Defendants’ barrister argued two points:
- the Defendants did not have to give standard disclosure as they could live with the only sanction the court could impose which was under CPR 31.21, i.e ‘A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.’
- the Defendants were not advancing a positive case and were merely putting me to proof, so only had to disclose material on which they relied
The first point does not acknowledge – again – the possibility of the Defendants having documents which undermine their case or support mine. Failing to disclose these is not a penalty for the Defendants – it’s an advantage. The argument is also wrong in that parties should not be able to pick and choose which directions they comply with on the basis of whether or not they like the look of the consequences.
The second point is wrong because putting me to proof is a positive case in that the Defendants’s position is ‘What you are saying is not true.’ I have no problem with this, I am the Claimant and bear the burden of proving my case. But: if the Defendants have material which undermines their position and supports mine, then they have to disclose those documents.
At the hearing, the judge ordered the Defendants to give standard disclosure. But made no order for costs. So it has cost me the application fee (£255) and the time and effort of making the application to get the Defendants to do that which they should have done under the original direction.
I am conscious of Tom Bingham’s point about lawyers hoping vainly that the other party has document which demolish their case. But I am not actually hoping for that. All I want is for the Defendants to have a proper look at the documents they have to see if they have material which undermines their case or supports mine.
It took me a couple of hours to go through my documents and decide what was properly disclosable. I expect it would take the Defendants a similar period of time. That’s not a disproportionate amount of time given the claim is worth around £10,000. Before the hearing to decide how much damages I should be paid, I am entitled – as is the court – to be satisfied that the Defendants have complied with their obligations and all the cards really are face up on the table.
Civil Procedure Rules (link is to justice.gov.uk)
Civil Procedure Rules, Part 31 Disclosure and Inspection of Documents (link is to justice.gov.uk)
Civil Procedure Rules, Practice Direction 28 The Fast Track (link is to justice.gov.uk)
Bingham T, The Rule of Law (Allen Lane 2010)
Max Walters, ‘Clyde & Co faces £50,000 fine after SDT ruling’ (4 April 2017) Law Society Gazette <https://www.lawgazette.co.uk/law/clyde-and-co-faces-50000-fine-after-sdt-ruling-/5060549.article> accessed 20 November 2017